The postings of a customs lawyer in Chicago on the state of customs law and international trade law. Important Disclaimer: None of this is legal advice, don't act on it. Don't ascribe these statements to my law firm, its partners or clients. Don't steal from my blog. I wrote it, I own it. But, feel free to link to me. Also, under the rules regulating speech by attorneys, this blog may be construed as lawyer advertising. I am the sole party responsible for the content.

Wednesday, May 30, 2012

Mailing, Notice, and the TAA

Trade Adjustment Assistance is the too often overlooked part of the subject matter jurisdiction of the Court of International Trade. TAA is the federal program that provides benefits to workers and others who are separated from employment or otherwise injured as a result of international trade. The usual case has to do with factory workers who lose their jobs when their employer outsources production to a lower cost country. There are also TAA programs for agricultural producers including farmers and fishermen. [Side note: is there a gender neutral version of fishermen? "Fisher" seems stylistically inadequate.]

Steve M. Carl v. United States Secretary of Agriculture is an interesting TAA case relating to the Farmers Program. The only real issue in the case is when the plaintiff was required to file his claim in the Court of International Trade. The relevant statute, 19 U.S.C. § 2395, requires that someone denied TAA benefits commence an action in the CIT "within 60 days after notice" of the denial. This leads to the question of what constitutes notice of the denial.

This is more than just lawyers puzzling out the meaning of words. It matters to Mr. Carl because he filed the case within 60 days of receiving the letter notifying him that his claim was denied. But, he filed the case more than 60 days after the date on the letter itself. So, the question from the Court was which date controls and that question is not answered in the statute or the regulations.

The first important point the Court made in its analysis is that this Farmers Program case against the Secretary of Agriculture is different than the more common case against the Secretary of Labor. In Labor cases, the regulations provide for notice to the claimant via publication in the Federal Register. Absent such a regulation or any other means of so-called constructive notice, the Department of Agriculture is required to provide actual notice.

The second important point is that Agriculture had argued in a previous case that the date of receipt started the 60 day clock. Despite that, in this case, it was arguing that the date of the letter was relevant. The Court appeared troubled by this change and pointed out that in the prior case there was nearly a month between the date of the letter and the mailing date shown on the envelop. This creates the possibility that a claimant could lose significant time granted to him or her by Congress, solely as a result of a slow mailing process in the agency.

The Court did not come right out and adopt either date as the presumptive trigger for the filing period. It did not have to go that far to resolve this case. Rather, the Court compared the date of receipt (Approximately May 19) with the date on the letter (May 13). This is a six-day lag from drafting to delivery. Using the Court's own five-day mailing rule as a benchmark, the Court found that six days is an unreasonable portion, specifically 10%, of the plaintiff's 60-day filing time. Lacking any evidence of the date of mailing (the third possible trigger), the Court adopted the date of receipt as the relevant date. As a result, the Court found that the case was timely filed.

Thus, the case gets to move forward on the merits.

One additional note, this case was handled by Mr. Carl, pro se. However, he had assistance on the brief from Prof. Steve Schwinn of the John Marshall Law School in Chicago of which I am a two-time alum (J.D. and LL.M.) and adjunct professor. While I hardly know him, I give Steve a virtual high five for helping out. Regardless of the outcome, TAA cases are important and claimants deserve attention from the bar.